Strobel v. Johnson & JohnsonStrobel v. Johnson & Johnson
The trial court granted summary judgment for J&J. Pointing to the declaration of J&J‘s expert, Dr. Matthew Sanchez, who swore that JBP was at all relevant times asbestos-free, the court ruled that the Strobels failed to present evidence creating a triable issue of legal causation. The Strobels filed declarations from five experts, Drs. Sean Fitzgerald, Steven Compton, Murray Finkelstein, and Richard Cohen, and Mr. Charles Ay, all contradicting J&J‘s experts on this point.
This appeal followed the entry of judgment for J&J. We now reverse.
I. BACKGROUND
A. Doug Strobel‘s History of Using JBP
Starting shortly after his birth in 1951, Doug Strobel‘s mother regularly used JBP when diapering him as an infant. As a young boy, Doug developed what would become a lifelong habit of applying JBP on himself, coating his feet in it and dumping it in his shoes after little league baseball practice to reduce odor. When he applied JBP to his feet in this way, a cloud of it would arise around him. Doug continued this habit as he grew older, applying JBP to his feet two to three times a week for nearly six decades, until 2014. Every two months or so, his wife, Jo Ann, routinely bought containers of JBP for Doug‘s use, as his mother had done when he was a boy. One of the Strobels’ experts testified that, over the course of his lifetime, Doug Strobel used at least 338 containers of JBP. While none of this is disputed, whether asbestos was present in JBP during the six-decade exposure period is a matter of sharp dispute.
The Strobels were unable to produce any containers of the JBP that Doug Strobel actually used or to arrange for testing of the contents of those containers, since all of them were consumed years ago. But the Strobels did make a showing that, over the course of Doug Strobel‘s lifetime, he was not exposed to asbestos from any source other than JBP.1 Generally speaking, the proof bearing on whether JBP contained asbestos during the period 1951 through 2014 fell into two categories. First, there were opinions from physicians specializing in asbestos-related diseases who considered Doug Strobel‘s lifetime habit of using JBP and addressed whether it was a likely cause of his mesothelioma (Drs. Cohen and Finkelstein for the Strobels and Dr. Moolgavkar for J&J2). Second, there was evidence from geologists and
Among all the physicians who submitted declarations for and against summary judgment, it was undisputed that mesothelioma is a signal tumor almost always associated with exposure to asbestos. Dr. Cohen opined without contradiction that inhaled asbestos fibers can become lodged in the lungs or the pleural cavity around the lungs, and that when the body is unable to expel these fibers through its natural immune response, they may cause genetic damage at the cellular level, ultimately causing mesothelioma. Dr. Cohen further opined, here too without contradiction, that there may be a long latency period between exposure to asbestos and the development of asbestos-related diseases (10–50 years is “normal“); that “mesothelioma is a very low dose disease, with no known minimum threshold of exposure to
From there, however, the physicians for each side sharply disagreed. For the Strobels, Dr. Cohen opined that “to a reasonable degree of medical certainty . . . [the JBP] Douglas Strobel used and was exposed to for decades, starting 68 years ago” contained asbestos “above normal background levels“; “that his use of and exposure to asbestos from [JBP] was a significant and impactful contributing factor in the development of his mesothelioma“; and that “Douglas Strobel‘s exposure to asbestos was the cause of his mesothelioma.” Dr. Finkelstein concurred. J&J, for its part, contended that Doug Strobel‘s mother sometimes used a brand of cosmetic talcum powder manufactured by Colgate-Palmolive rather than JBP, but did not dispute the absence of any unusual source of asbestos exposure in Doug Strobel‘s life other than talcum powder, nor did it claim he had any habits such as smoking that put his lungs at particular risk. Rather, J&J disputed legal causation based on Dr. Moolgavkar‘s view that mesothelioma, like all cancers, can develop spontaneously, that mesothelioma may be triggered by any number of carcinogens commonly found in today‘s environment, and that the risk of contracting mesothelioma is strongly correlated with a person‘s age.
The principal difference between the physician experts was this. The Strobels’ physicians gave weight to the opinions of Drs. Fitzgerald and Compton, who each attested that consumer powders made from talc produced from the mining regions where J&J obtained talc contained asbestos, while Dr. Moolgavkar did not, giving weight instead to the likelihood of other potential asbestos exposure sources and general risks that anyone may face
As further explained below, the trial court ruled that Dr. Compton‘s and Dr. Fitzgerald‘s declarations, to the extent they infer the presence of asbestos in milled, finished talcum powder from nothing more than positive tests for asbestos in raw talc ore used to manufacture it, are legally insufficient to create a triable issue of fact under applicable principles of causation. And to the extent Dr. Fitzgerald‘s declaration went beyond that, opining that asbestos was present in JBP itself during the exposure period, the court ruled that his opinion constituted inadmissible case-specific hearsay under Sanchez, supra, 63 Cal.4th at pages 684–686, which in effect left the opinions of Dr. Sanchez and Dr. Moolgavkar unrebutted.
C. The Geology and Mineralogy of Talcum and Asbestos
To frame the issues that divided the opposing experts in this case in a more specific way, we pause for a brief tour through the science that undergirds their opinions. Much of that science is undisputed. Talcum, or “talc” as the parties refer to it in shorthand, is a hydrated magnesium silicate mineral. One of the softest minerals on earth, at the far end of a spectrum opposite to, say, diamond, talc is used in a wide variety of commercial applications ranging from pharmaceuticals and cosmetics to ceramics, paints,
There are essentially two types of talc ores, industrial grade and cosmetic/pharmaceutical grade, depending on the particular deposit from which the ore comes. Talc deposits vary with regard to chemistry, morphology and habit. Chemistry in this context refers to the elemental composition of a mineral.4 Morphology refers to the size and shape of particles in a mineral. And habit refers to the form, crystal structure and texture in which a mineral is found in nature. Certain talc deposits, valued for their purity, softness and fine particle size, tend to be the ones used for cosmetic products.
“Asbestos” is a collective term describing a regulated group of six naturally occurring, highly fibrous silicate minerals that grow in a unique crystalline form as bundles. Geologists describe this growth habit as “asbestiform.” In the process of being crushed in the talcum powder milling process, asbestiform bundles are easily separated into long, thin, flexible fibers. When crystallized in an asbestiform habit, the six minerals that are regulated as asbestos fall into two mineral families: serpentine and amphibole. Both mineral families grow in asbestiform and nonasbestiform
Talc and asbestos minerals are distinct, but they are closely related in their geological formation and thus often found together in nature. Because magnesium, silica, and water are the essential ingredients in talc and asbestos, both minerals form under the same conditions. They both grow within formations of either continental rock or ocean crustal rock. Continental rock, which includes layered sedimentary rock of many varieties, is dominated by the elements silicon and aluminum, while ocean crustal rock, known as basalt—and further classified by geologists as either mafic or ultramafic in origin—is both silica poor and magnesium and iron rich.
As a result, asbestos is often found intergrown as an “accessory mineral” within a talc deposit. Serpentine tends to appear in talc deposits in mafic and ultramafic host rocks while amphiboles and serpentine tend to appear in talc deposits in sedimentary host rock. The growth of talc and asbestos within either of these two types of host rock occurs by complex metamorphic processes. According to Dr. Fitzgerald, the asbestos minerals most likely to be found as accessory minerals within talc are chrysotile, the fibrous form of serpentine, and the asbestiform varieties of three amphibole minerals: actinolite, tremolite, and anthophyllite.
Summing up the geology and mineralogy of asbestos in general terms, Dr. Fitzgerald states that the three most common asbestos accessory minerals found in talc (anthophyllite, tremolite and chrysotile) “form under similar conditions in regional or contact metamorphism of ultramafic rocks especially in the presence of carbonates and water, as all of these minerals are hydroxylated magnesium silicates.” And according to Drs. Cohen and Finkelstein, who add an epidemiology perspective, of those three, all have
D. Testing for Asbestos
Asbestos fibers are very small, so small, in fact, that millions of fibers could fill the air in a room without anyone being able to perceive them with the naked eye. Testing to detect them, as a result, requires specialized technology that can identify particles at the level of microns, a unit of measurement that is approximately 70 times smaller than the breadth of a human hair.5 These tiny fibers are distinguished by having a large aspect (length to diameter) ratio with highly parallel sides and are crystallized in an asbestiform morphology that causes them to separate into very thin fibers or fibrils. There are several analytical methods for detecting and identifying asbestos fibers. Each method has advantages and disadvantages. Bulk sampling identifies how much asbestos is in a product or material. Air sampling identifies how many asbestos fibers are released into the air.
For identifying asbestos in bulk materials, X-Ray Diffraction (XRD) determines the crystalline structure of minerals by measuring the response angles and intensities of an X-ray beam reflected through the lattice structure of a mineral. This method yields a mass percentage of different minerals present, but it has a detection limit around 1 percent for the regulated asbestos minerals and is incapable of detecting individual asbestos
Some experts in asbestos materials testing—Dr. Fitzgerald, for example—believe that Transmission Electron Microscopy (TEM) is the most reliable instrument for detection and identification of all asbestos types, especially in air sampling because of its higher resolution and thus higher sensitivity to the presence of individual asbestos fibers. The high-energy electron beam used in TEM allows resolution of even the thinnest 0.02-µm asbestos fiber, and Selected Area Electron Diffraction (SAED) can determine if the crystalline structure is one of the asbestos mineral types. As a further refinement, an Energy Dispersive X-ray detector (EDX) interfaced with a TEM yields elemental composition, confirming particle chemistry. According to Dr. Fitzgerald, TEM can therefore determine the morphology, structure, and chemistry definitional to asbestos minerals, at a resolution capable of defining asbestos fibers at the finest level.
Other experts in asbestos materials testing—Dr. Sanchez, for example—believe that electron microscopy alone is a suboptimal method to test for the presence of asbestos. According to Dr. Sanchez, the combination of XRD and PLM has been approved by the United States Food and Drug Administration (FDA) as a method of testing talcum powder for decades. Dr. Sanchez holds the view that, because PLM analysis examines a greater number of particles than TEM analysis, and because TEM images alone only depict morphology—yielding accurate information only if used with SAED
E. The Opinions of Dr. Fitzgerald and Dr. Compton
In opposition to J&J‘s summary judgment motion, Dr. Fitzgerald opined for the Strobels that “geologists have known for well over a century of the intimate relationship between talc and asbestos.” He further opined that, to determine the presence of asbestos as accessory minerals in talc mining ore, “we must closely and carefully examine” the talc formation from which the talc is mined, both from the “macroscopic geology of formation to the microscopic examination of materials and minerals as they change through time.”
During the exposure period in question here—1951 through 2014—J&J obtained talc that was later formulated into JBP from three mining sources: (1) from 1951–1967, the Val Chisone and Val Germanasca region of Piedmont, Italy, (2) from 1968–2003, the Windsor region in the state of Vermont, and (3) from 2003–2014, from Guangxi Province, near Guilin City, in China. Dr. Fitzgerald opined without contradiction that metamorphic processes in all three of these areas are conducive to the formation of asbestiform anthophyllite, tremolite, or chrysotile as accessory materials within talc.
According to Dr. Compton, “the asbestos content of . . . samples [for the Italian talc ore] found to contain amphibole and chrysotile fibers range[s] from approximately 1.7 to 660 million fibers per gram,” and for the Vermont ore found to contain amphibole fibers, the range was 1.16 to 15.3 million fibers per gram. “Fiber release studies of consumer talc products within this range,” Dr. Compton opined, show “elevated concentrations of airborne asbestos fibers during use of those products. It is expected that aerosolization of these samples or any powder consumer product containing these samples as a constituent ingredient would likewise result in elevated concentrations of airborne asbestos fibers.”
Addressing J&J‘s Chinese talc, Dr. Fitzgerald relied primarily on the geology of the region. According to Dr. Fitzgerald, talc deposits in the Guangxi region are “[c]omprised chiefly of siliceous carbonate rock derived from marine sediments subsequently metamorphosed to low-grade greenschist assemblages.” He explained, further, “it is well recognized
F. Summary Judgment for J&J
Upon examination of the evidence presented in support of, and in opposition to, J&J‘s motion for summary judgment, the trial court determined that J&J carried its initial burden of production, thus shifting the burden to the Strobels on the issue of legal causation. After scrutinizing the Strobels’ evidence in opposition to the motion, the trial court assumed arguendo that the Strobels had presented through Drs. Fitzgerald and Compton “competent direct evidence that samples of source ore associated with deposits at some source mines have been found to contain asbestos.” But that was not enough to meet the test of legal causation. Looking downstream from the mining sources of talcum ore, the court focused on whether “the talc ore from a deposit that actually contained asbestos was milled into talcum powder and then actually used in JBP sold during Plaintiff‘s exposure period.” The key witness on this issue was Dr. Fitzgerald, who tested five JBP samples obtained from J&J‘s historical archives, reporting positive tests for asbestos in four of them, but none of these asbestos-positive samples dated from within the exposure period.
The testing results in the record confirming the presence of asbestos in JBP marketed by J&J during the six-decade-plus exposure period at issue—presented with laboratory bench data specifying the number of asbestos structures counted—came from asbestos testing expert Dr. William Longo. Dr. Longo has presented these test results through testimony and expert
The court overruled most of J&J‘s objections to Dr. Compton‘s proffered opinion, but since he tested only mined ore, it concluded that that still left a gap in the Strobels’ evidence they could not overcome. Having ruled that, “to the extent” Drs. Fitzgerald, Cohen, and Finkelstein rely on inadmissible hearsay and that Mr. Ay was not competent to address the presence of asbestos in JBP, the trial court turned to the Strobels’ remaining evidence of exposure to milled and formulated retail containers of JBP. The court noted the Strobels’ evidence included a number of studies that have been published over the years reporting positive tests for asbestos in JBP samples, but concluded the Strobels failed to “establish a hearsay exception that permit[ted] [them] to use these documents to prove the truth of the matter, rather than the limited non-hearsay purpose of notice to [J&J].” Ultimately, the court found, the Strobels “fail[ed] to establish triable issues of fact to link the harvesting of a known deposit of asbestos-contaminated talc ore from a particular mine through the milling process and into a canister of JBP sold in stores during the exposure period.”
A. Legal Standards
We begin with familiar legal standards.
A trial court must grant a motion for summary judgment “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (
If that initial burden is met, the burden shifts to the plaintiff “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (
” ‘On appeal “[w]e review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]” [Citation.] Put another way, we exercise our independent judgment, and
We must, however, disregard any evidence to which legally correct objections have been made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334;
Turning from procedure to substance, the applicable substantive law focus here is on legal causation. As is frequently the case in asbestos litigation, that, in turn, requires us to consider the issue of exposure to asbestos. To prevail on “a cause of action for asbestos-related latent injuries,
B. Analysis
We conclude that the Strobels presented sufficient admissible evidence on legal causation to create a triable issue. On summary judgment, the parties offered the court two starkly different expert perspectives: There was, on the one hand, the view presented by Drs. Compton and Fitzgerald that J&J obtained talc ore from sources contaminated with asbestos during the exposure period, a premise from which these experts draw the inference that asbestos was present in JBP when Doug Strobel used it. On the other hand, there was the view presented by Dr. Sanchez that J&J sorted and screened its ore in the mining process to ensure only the most pristine talc was used for cosmetic products, and that suppliers were subject to strict testing requirements—established under an FDA-approved testing protocol—to confirm that source ore used to make JBP was asbestos-free.
Which of these competing views to accept must be decided at trial. Both camps of expert opinion extensively analyze historical records going back many decades, including government reports, published articles, and internal J&J memoranda, and arrive at opposite conclusions. One fundamental difference between the Fitzgerald and Compton perspective, on the one hand, and the Sanchez perspective, on the other, is in the respective methodologies the experts’ laboratories chose to use in testing samples of talc ore. Dr. Compton‘s lab relied on a combination of XRD and TEM utilizing
Dr. Sanchez, by contrast, believes there is no generally acceptable methodology for TEM analysis. He prefers a combination of XRD and PLM, an approach approved by the FDA that his lab, RJ Lee Group, used. According to Dr. Sanchez, only by using this method can it be determined whether the sample ore being examined has a sufficient population of fiber bundles to indicate the presence of asbestiform fibers. In effect, he believes, the ultrasensitivity of TEM analysis is also its weakness. Without looking for populations of fibers of a specified size9 that have asbestiform habit,
1. The Colgate-Palmolive Cases: Berg and Lyons
The trial court acknowledged that the Strobels presented competent, admissible evidence that there was asbestos in the Italian, Vermont and Chinese source ore used by J&J but concluded that was not enough to create a triable issue of fact. Relying primarily on Berg v. Colgate-Palmolive Co. (2019) 42 Cal.App.5th 630 (Berg), the court reasoned that without evidence that there was asbestos in any retail JBP product, as milled and formulated
In Berg, the plaintiff sued Colgate-Palmolive in 2017 claiming that his exposure many years before to a talc shave product once sold by Colgate-Palmolive‘s corporate predecessor, the Mennen company, was a substantial factor in causing him to develop mesothelioma. (Berg, supra, 42 Cal.App.5th at p. 632.) The proof showed that, as a teenager, plaintiff Berg had been exposed to Mennen‘s talc shave product for a three- or four-year period between 1959 and 1961 or 1962, and during that period, he had used four to six containers of it. (Ibid.) The proof also showed that, during his life, plaintiff Berg “was exposed to other products that contained asbestos as part of their design, such as cigarettes with asbestos-containing filters.” (Id. at p. 636.)
There, as in this case, the defendant built its case for lack of causation upon an opinion from Dr. Sanchez, who defined asbestos as a ” ‘group of six naturally occurring, highly fibrous silicate minerals’ ” that, ” ‘when crystallized in a rare asbestiform habit‘—‘likely account[ing] for less than 1% of the known world occurrences of each mineral‘—‘are regulated as asbestos.’ ” (Berg, supra, 42 Cal.App.5th at p. 632.) “Relying on studies by other researchers and his own testing, [Dr. Sanchez] opined that Mennen Shave Talc was ‘free of asbestos’ and, even if some of the raw talc sourced to make the product was contaminated with asbestos, there was no legitimate scientific basis on which to conclude that any particular container of shave
On that record, the Court of Appeal affirmed a summary judgment grant for Colgate-Palmolive, pointing out that plaintiff Berg had established no more than a possibility he had been exposed to asbestos in the accused Mennen product. “[E]ven assuming that some talc from the North Carolina and Italy mines contained some level of asbestos,” the trial court said, “the Fitzgerald declaration fails to support a conclusion that all or most of the Mennen Shave Talc containers sold from 1959 to 1962 contained asbestos.” (Berg, supra, 42 Cal.App.5th at p. 636.) Because “[t]he testing of the talc on which Fitzgerald relies, both his own and others‘, occurred decades after the period of Berg‘s use,” the court concluded, “Berg‘s testimony that the containers Fitzgerald tested looked like the ones he used . . . falls far short of establishing that any containers of Mennen Shave Talc sold between 1959 and 1961 or 1962 contained asbestos, much less that it is more likely than not that the containers Berg used contained asbestos.” (Ibid.)
In Lyons, on the other hand, the appellate court reversed a summary judgment grant on a record where the “[p]laintiff alleged and at her deposition testified that she used” defendant Colgate-Palmolive‘s “Cashmere Bouquet talcum powder from the early 1950‘s to the early 1970‘s.” (Lyons, supra, 16 Cal.App.5th at p. 465.) After decades of applying Colgate-Palmolive‘s talcum powder regularly to herself upon bathing, plaintiff Lyons was diagnosed with mesothelioma in 2015, the same diagnosis Doug Strobel received in this case. (Ibid.) Although Lyons did not keep any of the containers of talcum powder that she had used and she had no evidence showing positive tests for asbestos in Cashmere Bouquet sold at retail, here too like Doug Strobel, she presented a declaration from Dr. Fitzgerald reporting positive test results for asbestos in raw talc taken from three mines used by Colgate-Palmolive as sources of ore for the manufacture of Cashmere Bouquet, including the Val Chisone mine in Italy. (Id. at pp. 465–466.) Dr. Fitzgerald proffered testimony that his lab conducted bulk testing of Cashmere Bouquet product and concluded that “[t]he results of such testing are consistent with the makeup of the product, the ore, and the geology of the talc sources used by its manufacturer, Colgate.” (Id. at p. 467.)
Colgate-Palmolive contended Dr. Fitzgerald‘s declaration supported nothing more than a possibility of some asbestos in some Cashmere Bouquet sold at retail at some point in time, which left to conjecture whether the talcum powder the plaintiff used exposed her to asbestos. (Lyons, supra, 16 Cal.App.5th at pp. 467–468.) In support of its position, Colgate-Palmolive argued that Dr. Fitzgerald‘s testing of retail product had not been done on any tins of talcum powder that the plaintiff actually used and that his generally stated opinion as to the presence of asbestos in all Cashmere Bouquet lacked foundation. (Ibid.) The appellate court saw no basis for the evidentiary attack. It pointed to Dr. Fitzgerald‘s opinion that “the evidence that talc from all three mines used in the manufacture of Cashmere Bouquet contained asbestos, repeatedly found in multiple tests and studies conducted before, during and after the 1950 to 1970 time period, coupled with plaintiff‘s
As in Lyons, the summary judgment record here shows long term use of a talcum powder product alleged to contain asbestos by a mesothelioma sufferer who was not exposed to any other known source of asbestos above background asbestos levels that are ever-present in the environment, together with expert testimony reporting positive test results for the presence in the source ore used to manufacture the product. In the absence of evidence explaining how asbestos in the source ore would have been eliminated in the process of milling talc, that is enough to support more than a mere possibility that the accused product here, JBP, was a substantial factor in causing Doug Strobel to develop mesothelioma. Berg, by contrast, was a short-term use case in which the evidence tying the actual product the plaintiff used to the presence of asbestos in the product sold by the defendant during the exposure period was dubious. “The only basis on which to conclude that the samples tested were of the correct vintage was Berg‘s testimony that the containers Fitzgerald tested looked like the ones he used.” (Berg, supra, 42 Cal.App.5th at p. 636.) Because of the evidence of long-term usage in this case, and because, as we explain below, Dr. Fitzgerald fairly draws the inference on this record that JBP of a vintage dating from within the exposure period contained asbestos, there is no such evidentiary gap in this case.
2. The Trial Court‘s Evidentiary Rulings
In Lyons and in this case, the plaintiff relied on more than simply an inference from the use of asbestos-positive sources of raw talc. Dr. Fitzgerald
a. Standard of Review
Trial courts always enjoy wide discretion to rule upon evidentiary objections. That is why most appellate courts apply an abuse of discretion
Quoting from Reid v. Google, Inc. (2010) 50 Cal.4th 512, the Strobels urge us to review the trial court‘s evidentiary rulings de novo because we are dealing with a paper record on summary judgment. (Id. at p. 535 [” ‘Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors.’ “].) But the language they rely upon merely quotes from the Court of Appeal‘s superseded opinion in Reid. The Reid court expressly declined to reach the issue of “whether a trial court‘s rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.” (Ibid.)
We see no reason to take a step the Supreme Court has chosen not to take. But while we decline the Strobels’ invitation to announce a generally applicable de novo standard of review for evidentiary rulings on summary judgment, we think the procedural setting we have here justifies de novo review on this record. ” ‘The scope of [a trial court‘s] discretion always resides in the particular law being applied, i.e., in the “legal principles
b. People v. Sanchez and its Recent Progeny
“In Sanchez,” our Supreme Court “clarified the ‘proper application’ of our evidentiary law as it relates to the intersection of hearsay and expert testimony.” (People v. Veamatahau (2020) 9 Cal.5th 16, 25 (Veamatahau).) The Sanchez court begins its analysis by explaining that “[t]he hearsay rule has traditionally not barred an expert‘s testimony regarding his general knowledge in his field of expertise.” (Sanchez, supra, 63 Cal.4th at p. 676.) That starting premise is crucial to a proper understanding of the Sanchez rule governing case-specific hearsay. Sanchez accommodates the pragmatic reality that, by dint of what experts do—they draw upon training in, experience with, and study of knowledge produced by others—this special category of witnesses must of necessity rely on hearsay sources.
“Because experts rely on hearsay knowledge and because a jury ‘must independently evaluate the probative value of an expert‘s testimony,’ including by assessing the basis of the expert‘s opinion, the expert is entitled to tell the jury the basis or ’ “matter” upon which his opinion rests.’ ” (Veamatahau, supra, 9 Cal.5th at p. 25.) But rather than let an expert freely place before the fact finder any hearsay “matter” that may be characterized as a basis of his or her opinion so long as it is not admitted for the truth, the Sanchez court refined the rules governing admission of expert testimony to make clear that such testimony may convey hearsay only if it is (1) general knowledge among those in the expert‘s field, or (2) independently provable by admissible evidence. (Sanchez, supra, 63 Cal.4th at pp. 676–677.)
Under Evidence Code sections
In place of the old, limited admissibility regime under the Gardeley line of cases, Sanchez restores the traditional common law distinction between inadmissible case-specific hearsay and admissible background knowledge. (Veamatahau, supra, 9 Cal.5th at p. 25.) After Sanchez, what was once known as “basis” testimony coming from experts is now handled as a threshold matter of admissibility, rather than by assigning different probative purposes to already admitted evidence. An expert‘s testimony to background information is admissible—as it has always been, either as nonhearsay to the extent it rests on the expert‘s personal knowledge (ibid.), or under a hearsay exception to the extent it rests on information provided by others (id. at pp. 25–26 & fn. 1)—while testimony to case-specific facts is subject to exclusion, unless independently proved by admissible evidence (id. at p. 26).
“Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) Two recent California Supreme Court cases—neither of which the trial court had the benefit of considering—elucidate the proper application of this concept. At issue in the first of these cases, Veamatahau, supra, 9 Cal.5th 16, was the admissibility of an expert opinion from a prosecution criminalist identifying pills found in the possession of the defendant as alprazolam. (Id. at p. 22.) The expert, a criminalist named Scott Rienhardt, “held a degree in ‘chemistry, with an emphasis in analytical chemistry[,]’ . . . had previously worked for the Drug Enforcement Administration,” and over the course of his career had tested for controlled substances thousands of times, and had identified alprazolam ” ‘hundreds’ of times.” (Ibid.) But despite his credentials as an analytical chemist, Rienhardt conducted no laboratory testing of the pills at issue. Instead, he matched the shape and markings on the pills to the images of pills in a database known as Ident-A-Drug. (Id. at pp. 23, 31.) On direct examination, Rienhardt testified that “it is standard practice to identify pharmaceutical pills by visual inspection, whereby one compares markings found on the pills against a database of imprints that the [FDA] requires to be placed on tablets containing controlled substances. He then testified that he performed this visual inspection on the pills seized from defendant and formed the opinion that they contained alprazolam.” (Id. at pp. 26–27.) Then, on cross-examination, he went further, testifying more specifically that the Ident-A-Drug database ” ‘tell[s] you’ ” that pills displaying a certain imprint ” ‘contain[] alprazolam, 2 milligrams.’ ” (Id. at p. 27.)
Rienhardt‘s visual match of the seized drugs to the markings for alprazolam in the database, the court held, was not hearsay at all because he personally did the matching, and to the extent he drew on the accumulated knowledge of others reflected in the database to draw his ultimate conclusion
Resisting this conclusion, the defendant in Veamatahau contended that if an expert may simply consult a third-party source for his ultimate conclusion and convey that third party‘s conclusion to the fact finder as background information, the trial court‘s ability to vet the reliability of sources of third-party information “would be ‘undercut’ because the expert would be permitted to ‘essentially vouch for the reliability of a source.’ ” (Veamatahau, supra, 9 Cal.5th at p. 32.) This paints a “false dichotomy,” the court said. (Ibid.) Citing the backstop screening test for admissibility that trial courts must always undertake under the Evidence Code, the court explained that “[i]n fact, in law, and in practice, testimony admitted under section 801 or 802 [of the Evidence Code] is subject to scrutiny on reliability
While Veamatahau illustrates the latitude experts are still given post-Sanchez to testify to background information relied upon in the formation of their opinions, a second Sanchez follow-on case, People v. Valencia (2021) 11 Cal.5th 818 (Valencia), shows how the rule barring case-specific hearsay places limits on that practice. Valencia affirms the exclusion of case-specific hearsay in a gang prosecution case. There, the defendant faced charges under the California Street Terrorism Enforcement and Prevention Act (STEP Act;
Appealing his conviction and sentencing enhancements imposed under the STEP Act, the defendant argued that Officer Calderon‘s testimony was inadmissible case-specific hearsay under Sanchez. The California Supreme Court agreed and affirmed the reversal of the challenged conviction and sentence. (Valencia, supra, 11 Cal.5th at pp. 837–839, 841.) Picking up
The predicate crimes testimony from Officer Calderon did not pass this test. Sanchez itself acknowledges, by the use of a specific example involving gang prosecution, that “general testimony about a gang‘s behavior, history, territory, and general operations is usually admissible. (See Sanchez, supra, 63 Cal.4th at p. 698.) The same is true of the gang‘s name, symbols, and colors. All this background information can be admitted through an expert‘s testimony, even if hearsay, if there is evidence that it is considered reliable and accurate by experts on the gang.” (Valencia, supra, 11 Cal.5th at p. 838.) Officer Calderon‘s testimony about predicate crimes committed by Arvina 13 members—which was based on nothing more than “conversations with other officers and a review of police reports” (id. at p. 827)—had no such foundation in specialized knowledge generally accepted in his field or otherwise grounded in his expertise. “The proper role of expert testimony,” the court held, “is to help the jury understand the significance of case-specific facts
c. Dr. Fitzgerald‘s Opinion
J&J‘s summary judgment motion took a rifle-shot approach to the evidence of causation in this case, primarily targeting the reliance the Strobels’ experts placed on Dr. Longo‘s positive tests for asbestos in JBP. J&J objected on various grounds to the opinions offered by all of the Strobels’ experts, but the principal focus of these objections—and most of the parties’ attention in their appellate briefs—is on Dr. Fitzgerald‘s opinion.13 “[O]nly with the particular facts of Longo‘s testing in evidence,” J&J argues, could Dr. Fitzgerald “add general background knowledge to opine on their significance” in a way that is permissible under Sanchez. “Fitzgerald did not merely mention Longo without explanation on a list of reference materials,” J&J argues. He “spelled out Longo‘s finding of asbestos contamination in 18 particular containers of JBP” and other J&J talcum powder.
While the cases announcing this prohibition on rote repetition of the opinions of others predate Sanchez, we think the rule they enunciate remains
That does not end the inquiry, however. In its zeal to attack what it characterizes repeatedly as Dr. Longo‘s “made-for-litigation” testing results, J&J fails to account for the full breadth of the evidence the Strobels put forward in opposition to summary judgment. Both Dr. Sanchez and Dr. Fitzgerald selected and drew upon various published materials from government agencies and professional standard-setting groups,14 published
Even without Dr. Longo‘s testing data and results, we are satisfied that Dr. Fitzgerald formulated his opinion based upon principles generally accepted in his area of expertise and that he applied those principles upon a proper evidentiary foundation. Ultimately, the exposure issue in this case will turn on principles of geology, mineralogy and asbestos testing. Dr. Fitzgerald, a geologist with special expertise in asbestos detection, traced asbestiform minerals from the sources of raw talc J&J used to manufacture
The trial court seems to have been aware that Dr. Longo‘s testing was not the sole source of third-party information relied upon by Dr. Fitzgerald, because, after concluding Dr. Fitzgerald‘s reliance on Dr. Longo was inadmissible under Sanchez, the court went on to emphasize in vague terms that its ruling on this point embraced other third-party documents as well. Without discussing, identifying or analyzing any of these documents, the trial court ruled that they were all inadmissible case-specific hearsay. Some of the third-party source material relied upon by both Dr. Fitzgerald and Dr. Sanchez may well be excludable on hearsay grounds when offered at trial.19 But even assuming the court‘s broad-brush treatment of the “various
Rather, what is important is that the third-party documents chosen by Dr. Fitzgerald qualify as source material that may be reasonably relied upon by those in his field of expertise. (Veamatahau, supra, 9 Cal.5th at p. 27.) Particularly when Dr. Fitzgerald‘s declaration is read as a whole, we see nothing in his proffered testimony to suggest that he is relying on ” ‘matter’ ” that cannot be deemed “sufficiently reliable such that it ‘reasonably may be relied upon’ by experts testifying on the same subject.” (
J&J attempts to argue that, without Dr. Longo‘s testing results, Dr. Fitzgerald‘s opinion rests on ” ’ “assumptions of fact without evidentiary support” ’ ” (Sargon, supra, 55 Cal.4th at p. 770) and is therefore inadmissible as speculative under Sargon. We cannot agree. Dr. Fitzgerald traces asbestos contamination from mined talc ore to milled JBP, drawing inferences from a variety of data sources, including published papers, government reports, internal J&J documents, testing of source ore by Dr. Compton, as well as Dr. Fitzgerald‘s own testing of archival J&J samples of JBP. J&J has many points of disagreement with Dr. Fitzgerald, but none exposes an ” ‘analytical gap between the data and the opinion proffered’ ” that is ” ‘simply too great’ ” to be countenanced. (Sargon, at p. 771.) Under Sargon, the trial court “does not resolve scientific controversies.” (Id. at p. 772.) “Rather, it conducts a ‘circumscribed inquiry’ to ‘determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert‘s general theory or technique is valid.’ ” (Ibid.)
J&J argues there is a fatal gap in Dr. Fitzgerald‘s logic—and hence in the Strobels’ proof—because he reported positive tests for asbestos in archival samples of JBP though the 1940‘s, yet produced no such report for any sample during Doug Strobel‘s lifetime. We are not convinced this feature of Dr. Fitzgerald‘s opinion can bear the weight J&J places on it. Dr. Fitzgerald confirmed through his own testing that there is asbestos contamination in archival samples of JBP dating from the late 1940‘s, which is consistent with
d. The Opinions of Drs. Cohen and Finkelstein and Mr. Ay
Turning, finally, to the trial court‘s rulings that the opinions from Dr. Cohen, Dr. Finkelstein and Mr. Ay were inadmissible “to the extent” they rely on Dr. Longo and other third-party sources of information concerning whether JBP contained asbestos during the time Doug Strobel used it, we conclude that those rulings were correct. Dr. Cohen and Dr. Finkelstein
Our holding with respect to Dr. Cohen, Dr. Finkelstein and Mr. Ay should not be read to mean that, at trial, they may be barred from mentioning the presence of asbestos in JBP, or the geology, mineralogy or asbestos testing issues pertinent to that issue. Within their own ambits of expertise, Dr. Cohen, Dr. Finkelstein and Mr. Ay each proffers an opinion that is relevant to the ultimate question under Rutherford whether, taking into account “the length, frequency, proximity and intensity of exposure, the peculiar properties of [JBP], any other potential causes to which the disease could be attributed,” along with other factors bearing on comparative fault, Doug Strobel‘s “inhalation of fibers from [JBP] [may] be deemed a ‘substantial factor’ in causing [his] cancer.” (Rutherford, supra, 16 Cal.4th at p. 975.) Because there is likely to be some subject matter overlap in the opinions offered by all of the Strobels’ causation experts, it should be kept in
III. DISPOSITION
The order granting summary judgment and the judgment entered upon it are reversed and the cause is remanded for further proceedings consistent with this opinion. Jo Ann Strobel, prevailing appellant, shall recover the Strobels’ costs on appeal.
STREETER, Acting P. J.
WE CONCUR:
TUCHER, J.*
BROWN, J.
* Presiding Justice of the Court of Appeal, First Appellate District, Division Three, sitting by assignment pursuant to
Trial Judge: Hon. Wendy G. Getty
Counsel: Brayton Purcell, Gilbert L. Purcell, Richard M. Grant, Steven J. Patti, Christine A. Renken, for Plaintiff and Appellant.
King & Spalding, Paul R. Johnson, Alexander G. Calfo, Susan V. Vargas, Stacy L. Foster; Orrick Herrington & Sutcliffe, Robert M. Loeb, pro hac vice, Nathan Dullum, for Defendants and Respondents.
Notes
Here too we have a difference of views between the opposing experts that is consistent with reported lack of consensus among causation experts in asbestos litigation generally. (See 3 Faigman et al., Modern Scientific Evidence, supra, Areas of scientific disagreement—Talc, mesothelioma and ovarian cancer, § 26:32, fns. omitted [“Experts disagree as to whether cosmetic talcum powder is contaminated with asbestiform minerals. Some have analyzed these samples and reported finding asbestos fibers, whereas others have not. The issue is clouded by the distinction between amphibole asbestos and amphibole cleavage fragments.“].)
Dr. Sanchez, for his part, cites testing of Vermont talc ore by “McCrone Laboratories, RJ Lee Group, and other third-party testers comprising test results covering J&J‘s talcum powder for the past 40+ years.” Dr. Sanchez‘s testimony regarding testing by RJ Lee Group may be proper if he has personal knowledge of it, but like Dr. Fitzgerald‘s reference to testing of ore from the Emtal mine, there is no indication that any of the third-party testing to which Dr. Sanchez makes general reference was personally known to him, published or otherwise subjected to some form of peer review.
We take no view of whether, on appropriate objection at trial, any of the third-party sources relied upon by Drs. Fitzgerald or Sanchez may be excludable on hearsay or other grounds, in whole or in part.